Tariq Mahmood Awan
Have you ever realized that the chief secretary post is provincial but occupied by a federal civil servant? Then, how can the federal government appoint a federal civil servant to a provincial post even after the promulgation of the 18th Amendment?
Currently, the federal government appoints a chief secretary, and the process violates 1/3rd of the constitution of Pakistan. In the article, let’s dissect the unlawful and unconstitutional mode of appointing a chief secretary! However, the primary question is, can an agreement of 1954 supersede the complete constitution of 1973, especially with the provisions of the 18th Amendment?
The existing mode of appointment of the chief secretary is an administrative joke extending a colonial custom. It comprises a consultative process between the prime minister and the chief minister or their authorized persons. This arrangement purely depends upon an agreement supposedly reached between the federation and provinces in the early part of independence, that is, 1949. Interestingly, this agreement was never reached; however, it was implemented fraudulently. This agreement is the foundation of creating the civil service of Pakistan CSP and subsequent composition and cadre rules in 1954. Section 15(4) of the ibid agreement governs the process of appointing a chief secretary. The ibid section of the agreement lays down the process of appointing a chief secretary, where due consideration shall be given to the provincial government’s proposal. However, the final decision to appoint a chief secretary shall be the discretionary power of the federal government. Hence, undoubtedly, the federal government maneuvers mode of appointment to her advantage on a post purely connected with the affairs of a province.
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However, this mode of appointment, depending merely upon an agreement, requires laborious legal and constitutional interrogation. Does the so-called agreement correspond to the provisions of the existing scheme of the Constitution? Inherently, the 18th Amendment of the Constitution has separated the legislative, executive and financial authority of the federation and provinces, thus making the current mode of appointment a constitutional challenge to the 18th Amendment. How can the federal government extend its executive authority on a provincial post bearing the provincial legislative, executive and financial authority under Article 97, read with Article 137 of the constitution of Pakistan?
Historically, the office of chief secretary was established in colonial India to lead the administration in a province without an empowered political executive. Therefore, it was only accountable to the secretary of state for India. Section 10 of the Indian Independence Act of 1947 deleted all the provisions regarding the services of the secretary of state for India. Thus, the first interim constitution of Pakistan, was left without any provision for the reservation of provincial posts for central services. This deletion of the services should have allowed newborn countries to raise services corroborating the scheme of new constitutions. Unfortunately, the dominion of Pakistan could not legislate the Constitution till 1956. So, amid constitutional crises, the centralists established a new service modelling on the colonial scheme of reserving provincial posts for central services without an enactment and constitutional provisions to control and extend the central authority on the provinces.
Currently, Pakistan has a federal parliamentary constitution. Powers in a federation are distributed between federation and provinces, whereas a parliamentary form of governance produces both parts of the executive from the same legislature. The executive is the functional and implementing part of a government, either political or bureaucratic. In democracies, it is the political executive who leads the bureaucratic executive. The political executive is the elected executive, unlike the bureaucratic executive, which is the permanent part of the executive. No provision of the Constitution nor legislation can take effect in defiance of the federal parliamentary nature of the Constitution. It raises a fundamental constitutional question: if the provincial assembly produces the political executive of the province, then how can the federal government produce the provincial bureaucratic executive, including the chief secretary? It simply requires that the same legislature produce both the chief minister and chief secretary of a province. With the abolition of the concurrent list, only one forum is available where the federation and provinces can share together: the Council of Common Interests CCI.
Furthermore, the argument draws a question: who is constitutionally competent to appoint a chief secretary? The post of chief secretary is neither federal nor a common post between the federation and a province. It is a post connected with the affairs of a province in connection with Article 240 (b) and Provincial civil servants’ acts. The federation’s executive, legislative and financial authority cannot extend to the post of chief secretary bearing provincial legislative, executive and financial authority. The provincial government is constitutionally competent to appoint the chief secretary from the service of the province. The present mode of appointment by the federal government through the disputed agreement violates the fundamental federalistic principles of the Constitution. Then, the post of chief secretary belongs to the provincial department of S&GAD and will only be occupied by a service of S&GAD, PMS.
Therefore, Provincial governments must enforce their constitutional prerogative to appoint a chief secretary. The appointment by the provincial governments shall benefit the provincial administrative autonomy. The incumbent chief secretaries are federal civil servants and, therefore, not answerable to provincial governments. The federal government not only appoints a federal civil servant to a provincial position of chief secretary but also places a number of federal civil servants at the disposal of provincial governments. Then, the chief secretary leads the battalion of federal civil servants who monopolize the provinces, compromising provincial interests. Hence, the appointment renders the provincial assembly, cabinet and the people’s mandate irrelevant.
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Accordingly, the appointment of a Chief secretary requires a constitutional alignment. The political and bureaucratic executive must correspond to the same legislature in parliamentary governance. How is it possible that a provincial assembly elect a chief minister, but a chief secretary, who is the corresponding part of the CM, is posted by the federal government? There is a need to rectify this constitutional anomaly.
The executive part of the government should correspond to each other. These constitutional and administrative anomalies lead to the failure of governance and federalism. There is no model of governance available in the world where the top bureaucratic executive is not accountable to the political executive. Provinces have long suffered from this scheme of reserving provincial posts for central services, and there is an urgent need to corroborate it with the Constitution. The only constitutional option which is available is to appoint a chief secretary by the provincial government from the service of the province. This mode of appointment is anti-federalism. Is it not a joke that a federal civil servant chief secretary represents a province in a federation?
Apart from constitutional anomalies, a parallel office to that of the Chief Minister is also administratively not required in a cabinet form of governance. The chief minister must remain the sole chief executive of the province. The forces of centralization should realize the importance of devolution in a federal form of governance. Provincial governments are required to appoint their chief secretaries to ensure federalism, good governance and service delivery.
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